I’m a huge fan of England’s top flight soccer league, the English Premier League. While my team is Chelsea F.C. (go Blues!), I keep up with other players and teams. And like many other die-hard fans of the English Premier League, I was surprised when one of the league’s best players was caught driving drunk. Why was I surprised that Yaya Touré, of Manchester City F.C., was caught driving drunk? Because he is known for refusing alcohol due to his Muslim religion.

Touré was charged in late November for an incident in which he was pulled over by police for driving with passengers while having a blood alcohol content of twice the legal limit in England of 0.08 percent.

So if Touré doesn’t drink alcohol, how did he get caught driving under the influence? Touré believes that his drink was spike at the party that he had left.

“Over the last two weeks there has been some confusion as to why I was charged with drink driving, as it is well known that I am a Muslim and do not drink,” said Touré on his website. “I have always refused alcohol. Anyone who knows me or follows football will have seen me refuse champagne for Man of the Match performances because of my commitment to my religion.”

Although Touré did not dispute the charges and was ultimately sentenced to a license suspension and a whopping £54,000 fine, he explained to the court that he had not intentionally consumed alcohol.

According to The Telegraph who was present in court for Touré’s sentencing, Touré “told magistrates he had no idea he had been drinking, even though he conceded his Diet Coke tasted odd, and although he felt ‘tired’ he had not suspected he was tipsy.

“He told the court that he had been to a house party where he had poured himself what he thought was Diet Coke from a jug, but later discovered it was mixed with brandy.

“He had been the ‘designated driver’ on the night of the party and drove his car with passengers in it, claiming he just felt tired, despite being double the drink-drive limit.

“He told the court he thought his drink tasted different but only later found out he had been pouring himself a pre-mixed drink.”

Did Touré have to accept responsibility if he unknowingly became intoxicated and then got behind the wheel?

At least here in California, possibly not.

The California jury instruction CALCRIM 3427 states, “A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the force, duress, fraud, or trickery of someone else, for whatever purpose [without the fault on the part of the intoxicated person].” A person who has been involuntary intoxicated cannot be convicted of a crime according to California Penal Code section 24 which states, “All persons are capable of committing crimes except…[p]ersons who committed the act charged without being conscious thereof.”

Touré would have to prove that he became intoxicated through no fault of his own. For example, the defense is not available if he intended to drink alcohol, but someone spiked his drink with more alcohol than you knew of. This might also mean that he had no reason to believe that the drink was spiked or that he had no reason to believe he was intoxicated when he decided to drive.

Based on his statement, he didn’t intent to drink alcohol, however he may have had reason to believe his drink was spiked.

However, the California Court of Appeals in People v. Scott (1983) 146 Cal.App.3d 823, has held that the mistake of fact defense can be based on involuntary intoxication. The mistake of fact defense can be used if you act under an honest and reasonable mistake of fact and commit a crime. This does not apply if you are mistaken of the law. For example, you cannot use the defense if you mistakenly believe the law prohibited you from driving with a .10 or above instead of .08 or above BAC, and you have a .09 BAC. On the other hand, if you honestly and reasonably, but mistakenly believe that you have not ingested any intoxicating substances, you may be able to use the mistake of fact defense.

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